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on November 3, 2023
Read Time: 9 Minutes
The subject of illegal working by foreign nationals in the UK – and its consequences for employers and migrants alike – has re-entered the news headlines recently. This is partly due to the UK Government having announced that it will put up the maximum fines organisations can receive if they are found to be employing people who lack lawful immigration status.
The news of the increased fines was outlined in a news release from the Home Office on 7th August 2023, with the heightened penalties set to take effect from the start of 2024.
In fact, the department said that fines would be “more than tripled” for not only employers allowing individuals without the legal right to work in the UK to work for them, but also landlords that permit such migrants to rent their properties.
The changes represent what the Home Office has described as “the biggest shake-up of civil penalties since 2014”, which was the last time the fines for employing an illegal worker in the UK were increased.
Our team of experts in UK immigration law here at Cranbrook Legal therefore thought this could be an opportune moment to look at what the present consequences are for UK businesses that hire illegal workers, and what such organisations need to do to ensure compliance.
Much has been made of UK Prime Minister Rishi Sunak’s declaration of his determination to “stop the boats”, this being a reference to the well-publicised issue of migrants crossing the English Channel in small boats – more than 20,000 people having reportedly made this journey so far during 2023.
In its news release setting out the altered fines, the Government put its decision in this context. Immigration minister Robert Jenrick commented that “making it harder for illegal migrants to work and operate in the UK” was crucial for deterring small-boat crossings, adding: “Unscrupulous landlords and employers who allow illegal working and renting enable the business model of the evil people smugglers to continue.”
The Government said that the opportunity to work and rent in the UK – despite not having a lawful basis to do so – served as “significant pull factors” for migrants attempting to cross the Channel. It added that people smugglers frequently used the promise of jobs and housing to convince people to make these journeys.
The news release framed the heightened penalties as a deterrence measure, stating that they would put off employers and landlords “from engaging in these illegal and dangerous practices, further deterring people from attempting to come to the UK illegally.”
In its announcement of the upped fines for employers that allowed illegal migrants to work for them, the Home Office said that the civil penalty for such organisations would increase from up to £15,000 per illegal worker, to as much as £45,000 per illegal worker. The Home Office has said that the latter figure will take effect from the start of 2024.
The above figures are in relation to a first-time breach of the rules. An employer that is found to have been repeatedly in breach can be hit with a civil penalty of up to £20,000 for each illegal worker. From early next year, this fine will increase to as much as £60,000 per illegal worker.
The potential penalties for organisations that are discovered to be employing an illegal worker are not only monetary. The Government has said that employers can be sent to jail for five years and be hit with an unlimited fine, in the event that they are found guilty of employing someone who they knew or had “reasonable cause to believe” did not have the right to work in the UK.
Examples of the latter situation include if the given employer had any reason to believe that:
Such possible financial and legal consequences underline the importance of employers carrying out “right to work” checks on their employees. Indeed, the Government has said that in the event of an employer hiring someone who does not have the legal entitlement to work in the UK, and the employer in question not having performed the correct checks (or not having done those checks properly), this could be a reason for the employer to be penalised.
Unfortunately, the possible negative consequences of an employer receiving a civil penalty in relation to its employment of illegal workers, are not limited to the fine itself, or even potential imprisonment.
For example, the employment of illegal workers constitutes a serious breach of the responsibilities that come with holding a sponsor licence. This could lead to the given organisation’s sponsor licence being revoked, which would mean any sponsored workers currently employed by the sponsor would see their leave curtailed.
The Home Office deciding to revoke a sponsor licence does not come with any right of appeal for the affected employer, and the organisation in question would need to wait until the end of the relevant “cooling-off” period before it would be permitted to apply for a sponsor licence again. This period is typically 12 months from the date of the sponsor licence revocation.
With the purpose of holding a sponsor licence – from the employer’s perspective – being to enable them to hire certain groups of migrant workers, and some organisations in the UK being greatly dependent on migrant talent, you probably don’t need our team here at Cranbrook Legal to spell out the potentially dire consequences if your business was to have its sponsor licence revoked. It would be an event that could seriously imperil your organisation’s efforts to grow, or even to survive.
It is worth noting that a civil penalty in relation to employing an illegal worker would have the same effect as revocation, with regard to your organisation’s ability to apply (or reapply) for a sponsor licence. In this case, the minimum “cooling-off” period will actually be one year from the date the penalty was paid in full. It could even be as long as five years, in the event of two or more civil penalties having been issued.
Nor does any of the above touch on the reputational damage that can be caused to a company that is found to have employed workers who lack the legal right to work in the UK. Indeed, the Home Office publishes quarterly reports displaying the names of employers that have exhausted their rights to object to and/or appeal against a civil penalty, alongside the level of penalty imposed. The employment of someone who is not legally entitled to work in the UK could even have negative implications for a person’s ability to take up board positions and/or apply for credit in the future. This could be the case in the event of a civil penalty being delinquent and the Home Office instigating enforcement action in order to collect the debt.
Of course, a person who does not have the legal right to work in the UK being found to have done so, is not an event that will only have consequences for their employer. That’s because there could also be seriously negative implications for the illegal worker themselves.
Whether you came to the UK legally and had the right to work in the UK initially, only for this status to subsequently expire, or you are working in the UK despite never having had the legal entitlement to do so, you could be at high risk of being imprisoned, fined, and/or deported.
If you are caught working in the UK without the right to do so, the authorities might detain you. In such circumstances, you are advised to engage the services of capable experts in UK immigration law, you will be able to advise and guide you, making clear your options.
Although – as aforementioned – deportation or prison time are possible consequences for a migrant who is found to be working illegally in the UK, a “voluntary return” order may also be possible. Such an order would entail the Government helping to pay the migrant’s costs for safe passage back to their country of origin, without a fine being imposed on them.
Hopefully, this article will have helped you to understand and appreciate the potentially severe consequences of your organisation hiring someone to work for you who does not have the right to work in the UK. Those consequences could extend well beyond any fines that may be imposed, potentially threatening the reputation, growth prospects, and even survival of your business.
The good news is that there are various steps an employer in the UK can take to minimise any risk of committing such breaches, and facing the associated consequences.
These measures include – but should not end with – carrying out “right to work” checks on all prospective employees before such workers begin their employment, as well as undertaking follow-up checks on workers whose permission to stay in the UK is time-limited, a reasonable time before their permission is set to expire.
Furthermore, as a UK employer, you should be taking care to retain any and all copies of “right to work” documents that you have checked, which should provide information in relation to when the check was carried out, and who did this check. The people within your organisation who are responsible for undertaking “right to work” checks will need to have been thoroughly trained in this, and they must be aware of their responsibilities.
As we explained above, a key reason to be vigilant with regard to the risk of any of your employees working illegally, is the need to protect your organisation’s sponsor licence (if your firm holds one). For this reason, it is crucial to ensure those responsible for managing your firm’s sponsor licence are well-informed on their duties and responsibilities, including when it comes to undertaking appropriate “right to work” checks.
Certainly, your organisation in the UK should not be employing anyone who you have not carried out “right to work” checks for. Nor should you take the risk of hiring anyone who you know or have reasonable cause to believe does not have the legal right to work in this country.
Our award-winning specialists in UK immigration law at Cranbrook Legal in central London, would be pleased to assist your company in its efforts to ensure compliance with the above areas. To learn more about our wide-ranging services in this regard, please do not hesitate to call our team today on 0208 215 0053, or to request a free consultation using the online contact form on our website.
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